TEXAS OIL LAWS 


RELATING TO 

PUBLIC LANDS AND RESERVED 

MINERALS 


WITH FORMS 


COMPILED BY 

CLAY COOKE. LAWYER, FORT WORTH. TEXAS 
W. W. HUBBARD, LAWYER, PECOS. TEXAS 


PRICE, Sl.OO 






TEXAS OIL LAWS 


RELATING TO 

PUBLIC LANDS AND RESERVED 

MINERALS 


WITH FORMS 


COMPILED BY 

CLAY COOKE, LAWYER, FORT WORTH, TEXAS 
W. W. HUBBARD, LAWYER, PECOS, TEXAS 

i > 

) ) 

* > > 


PRICE, $1.00 








Copyrighted 1919. 

W. W. HUBBARD, Pecos, Texas, and 
CLAY COOKE, Fort Worth, Texas.. 



©C1.A535J.95 

JfJfJ 10 1919 





PREFACE 


The following brief is presented for the purpose 
of aiding in arriving at the correct status of land 
with respect to the various mineral reservation laws 
of the State. It is not intended as an exhaustive 
treatise of the subject, but merely a brief of the law 
stated as concisely as possible for the benefit of busy 
men. We believe it will be found that the conclu¬ 
sions reached are correct and that the data here col¬ 
lected will be of value to anyone interested in the 
subject. 











4 







LEGISLATIVE HISTORY 


The first mention, in the legislative history of 
Texas, of mines or minerals, is contained in the Laws 
of the Republic of Texas, 1837, as follows: 

“Provided, that no lands granted by this govern¬ 
ment shall be located on salt springs, gold or silver 
mines, copper or lead, or other minerals or any 
island of the republic/’—Gammel’s Laws, Vol. 1, 
page 1291. 

This statute was construed in the case of Cowan 
V. Hardeman, 26 Texas Reports, 217; the court says, 
at page 222: 

“The object and purpose of the legislature was 
simply to reserve to the republic the islands and the 
salt springs, gold and silver mines, copper and lead 
and other minerals, as corporeal hereditaments out of 
the public domain; and thus, while the mineral re¬ 
sources of the country that were then known to exist 
or that might afterward be developed were thereby 
secured to the government, no embarrassment was 
placed in the way of the citizen in acquiring the fee 
in the quantum of land to v/hich his certificate or 
scrip entitled him. It is a well established doctrine 
from the earliest days of the common law, that the 
right to the minerals thus reserved, carries with it 
the right to enter, dig and carry them away, and all 
other such incidents thereto as are necessary to be 
used for getting and enjoying them.” 

The law of 1837, as above quoted, contained 
the only reference to mines and minerals in either 
the Constitution or laws of Texas, until the Consti¬ 
tution of 1866, Article 7, Section 39, as follows: 

“That the State of Texas hereby releases to’ the 


ov/ner of the soil all mines and mineral substances 
that may be on the same, subject to such uniform 
rate of taxation as the legislature may impose. All 
islands along the gulf coast of the State, not now 
patented or appropriated by locations under valid 
land certificates, are reserved from location or ap¬ 
propriation in any other manner by private indi¬ 
viduals than as the legislature may direct.’"—Gam- 
mel’s Laws, Vol. 5, page 880. 

The Supreme Court of Texas in 1884, in the case 
of State of Texas v. Parker, 61 Texas Reports, 265 
at 268, says: 

“This provision evidenced a change in the former 
policy of the State with reference to mines and min¬ 
eral substances. Theretofore in making grants of 
land the State had reserved the mines and mineral 
substances. But by this provision these were re¬ 
leased to the owner of the soil whether the grant 
was made before or after that time. This provision 
is in substance embodied both in the Constitution of 
1869 and that of 1875.” 

The Constitution of 1869, Article X, Section 9, 
(Gammel’s Laws, Vol. 7, page 419) is as follows: 

“The State of Texas hereby releases to the owner 
or owners of the soil all mines and mineral sub¬ 
stances that may be on the same, subject to such 
uniform rate of taxation as the legislature may im¬ 
pose.” 

And the Constitution of 1876, Article XIV, Sec¬ 
tion 7 (Gammel’s Laws, Vol. 8, page 824), is as fol¬ 
lows : 

“The State of Texas hereby releases to the owner 
or owners of the soil all mines and minerals that 
may be on the same, subject to taxation as other 
property.” 

In the case of Cox v. Robison, 150 S. W., 1149, the 
relator applied to the Supreme Court for a man- 


6 



damus to require the Land Commissioner to issue 
him an unconditional patent on land purchased from 
the Public School Fund in 1907, which land had been 
theretofore classified by the Land Commissioner, un¬ 
der the authority of law, as grazing land containing 
mineral deposits. 

The relator contended that by reason of the pro¬ 
vision of the 1876 Constitution, Article XIV, Section 
7, last above quoted, the State had lost its power to 
enact laws providing for the reservation of minerals 
in the conveyance of its public school, university, 
and asylum lands, and that Article 3498a, Revised 
Civil Statutes of 1895, providing for the reservation 
of minerals in sales thereof is accordingly unconsti¬ 
tutional. 

Chief Justice Phillips, speaking for the court, 
refused the mandamus, holding that by Article XIV, 
Section 7, of the 1876 Constitution, the State released 
the minerals in the lands which were owned by 
private owners at the date the Constitution was 
adopted, that the above provision of the Constitu¬ 
tion operated retrospectively only and did not deny 
to the legislature the power to provide for the reser¬ 
vation of minerals in future grants of the school and 
other public lands. 

No doubt, therefore, can exist that the owners of 
all lands purchased from the State prior to February 
15, 1876, the date of the ratification of the Consti¬ 
tution, own also all the mines and minerals that may 
be on same. 

LAV/S OF 1883. 

The 1876 Constitution having ‘'released to the 
owner or owners of the soil all mines and. minerals 
that may be found on same,’' and there having been 
no legislation affecting mines or minerals thereafter 
until 1883, the law enacted during the session of that 
year is first to be considered. 

7 


The first section of the Act reads as follows: 

“That all minerals, in the public school, university, 
asylum and public lands of the State of Texas be 
and the same are reserved from the operation of the 
laws for the sale of such lands, and shall be used and 
disposed of for the benefit of the respective funds 
for which said lands are now set apart as hereinafter 
prescribed/^ The second section places these lands 
under the control of the “Land Board.” (Laws of 
1883, page 100). 

The “Land Board” was created by an Act of the 
same legislature (Laws 1883, page 85), entitled: 
“An Act to provide for the classification, sale and 
lease of the lands heretofore or hereafter surveyed 
and set apart for the benefit of the common school, 
university, the lunatic, blind, deaf and dumb and 
orphan asylum funds,” and the Land Board con¬ 
sisted of the governor, attorney general, comptrol¬ 
ler, treasurer and commissioner of the general land 
office. 

The decision in Greene v. Robison, Land Commis¬ 
sioner. handed down March 12, 1919, 210 S. W., 
498, holds as follows: 

“A purchaser from the State, under Act of April 
12, 1883, (Acts 18th Legislature, c. 88), of school 
land, not known to contain minerals, but fairly and 
in good faith classified and sold without reservation 
as agricultural land by the duly authorized State 
authorities, acquired title to minerals which might 
be thereafter discovered, and relator is not, under 
Acts 33d Leg. c. 173, as amended by Acts 33d Leg. 
(extra session), c. 18 (Vernon's Sayles’ Ann. Civ. St. 
1914, Arts. 5904-5920j), entitled to a permit to pros¬ 
pect on the land for oil and gas, in view of Rev. St. 
1895, Art. 4041, validating title to minerals.” 

The opinions of Chief Justice Phillips in this case 
and in Cox v. Robison, supra, may be said to be land- 


8 


marks in the judicial interpretation of the laws of 
this State affecting mineral rights as between the 
State and the owners of land purchased from the 
State. While in no way negligent of the prime in¬ 
terests of the State and the several funds to which 
such lands belonged, Mr. Justice Phillips has adopted 
a broad interpretation of the legislative acts and one 
which merits the approval of thoughtful men who 
are in accord with the principle that the same rule 
of ethics and good faith should prevail between the 
State and its citizens as between individuals. 

The careful perusal of the opinion in Green v. 
Robison is commended to all lovers of clear thought 
logically and forcefully expressed. 

LAWS OF 1889. 

The mineral laws of 1883, as above quoted, re¬ 
mained unchanged until the enactment by the 1889 
legislature of the Act (Laws 1889, p. 116, Sec. 1; 
also Art. 3481, Rev. St. 1895), as follows: 

“All the public school, university, asylum and 
public lands containing valuable mineral deposits, 
are hereby reserved from sale or other disposition, 
except as herein provided, and are declared free and 
open to exploration and purchase under regulations 
prescribed by law by citizens of the United States 
and those who have declared their intention of be¬ 
coming such.^’ 

Section 15 of the same Act provides as follows: 

“Whenever any application shall be made to buy 
or obtain title to any of the lands embraced in Article 
3481, of this title, except when the application is 
made under this title, the applicant shall make oath 
that there is not, to the best of his information and 
belief, any of the mineral embraced in this title 
thereon, and when the commissioner has any doubt 
in relation to the matter, he shall forbear action 


9 


until he is satisfied. And any sale or disposition of 
said lands shall be understood to be with a reserva¬ 
tion of the mineral thereon to be subject to location 
as herein provided.'' Rev. St. 1895, Art. 3495. 

LAWS OF 1895 AND 1907. 

Section 1, page 197, Laws of 1895 (Art. 3498a,. 
Rev. St.) practically identical with Article 3481 
(1889), is as follows: 

“All public school, university, asylum and public 
lands specially included under the operation of this 
title, all the lands now owned by the State situated 
within the reservation known as the “Pacific Reser¬ 
vation," which were taken off the market and re¬ 
served from sale by an Act approved January 22, 
1883, containing valuable mineral deposits, are here¬ 
by reserved from sale or other disposition, except as 
herein provided, and are declared free and open to 
exploration and purchase under regulations pre¬ 
scribed by law, by citizens of the United States and 
those who have declared their intention of becoming 
such; provided, that all who have located and re¬ 
corded valid claims under previous valid laws and 
have not abandoned same, but are engaged in de¬ 
veloping same, shall have a prior preference right 
for ninety days after the passage of this title in 
which to relocate same under this title." 

And Section 14, page 197, Laws 1895 (Art. 3498n) 
is substantially a re-enactment of Article 3495. 

Both the 1889 law, page 116, and the 1895 law, 
page 197, were carried into the Revised Statutes of 
1895, the compiler of the statutes making the fol¬ 
lowing note: 

“This title (71) comprises the Acts of 1889 and 
1895. The latter probably supersedes the former, 
as it appears to be a substantial copy, with a few 
changes and additions." 


The law as it thus appears in the Revised Statutes 
of 1895, Article 3481 having been probably super¬ 
seded by Article 3498a, remained unaltered until 
the laws of 1913; the Revised Statutes of 1911 car¬ 
ried forward only Article 3498a. In the meantime, 
in 1907, the legislature enacted the following pro¬ 
vision as part of the law providing for the sale and 
lease of lands : 

“The land which is now or may hereafter be 
classed as mineral may be sold for agricultural or 
grazing purposes, but all sales of such lands shall 
be upon express condition that the minerals shall be 
and are reserved to the fund to which the land be¬ 
longs and such reservation shall be stated in all ap¬ 
plications to purchase; * * * The commissioner shall 
adopt all the necessary rules and regulations for the 
execution of the several provisions of this chapter.’’ 
(Laws 1907, p. 490, Sec. f). 

The Supreme Court has construed the law of 1895, 
Article 3498a, in the case of Schendell v. Rogan, 63 
S. W., 1001. Judge Brown speaking for the court, 
says: “The legislature, at its session in 1895, re¬ 
enacted in substance, the Act of 1889, which re¬ 
served from sale lands containing minerals, both 
laws being embraced in the Revised Statutes as title 
71.” This decision will therefore be authority in 
all cases in which the underlying facts are the same, 
at least for the period beginning with the enactment 
of the law of 1889 and continuing to the enactment 
of the law of 1907, above quoted. 

The facts in the Schendell case are as follows: 
Section 62, public school land, had been classified 
by the land commissioner as agricultural land and 
valued at $2.50 per acre. The land was then placed 
on the market in conformity with the law of 1887 
providing for the sale of public school and other 
lands. 


11 


On April 1, 1896, William Armstrong settled in 
good faith on the land and applied to the land com¬ 
missioner for the purchase of same, fully complying 
with the law of 1895 providing for the sale of public 
school and other lands. The land commissioner 
awarded the land to Armstrong, who complied with 
all the requirements as to occupancy, made all in¬ 
terest payments thereon and performed all the acts 
requisite to entitle him to patent. He then sold the 
land to the relator, August Schendell, v/ho became 
substitute purchaser, having assumed the obligation 
of Armstrong to the State for the unpaid purchase 
price. Schendell thereafter tendered the unpaid 
balance of purchase money, together with the patent 
fees, to the commissioner and demanded a patent to 
the land. 

Neither in making application, to purchase the 
land nor in application for patent did either Arm¬ 
strong or Schendell make “oath that there is not to 
the best of his knowledge and belief, any of the min¬ 
erals embraced in this title thereon.’’ The land 
commissioner refused to issue the patent because of 
the failure of Armstrong to make such oath. 

The opinion of Judge Brown continues as follows: 

“Respondent claims that Articles 3498a and 
3498n reserved from sale all lands containing valu¬ 
able minerals, whether known or not. The lan¬ 
guage, “All public school, university and asylum 
lands * * * containing valuable mineral deposits 
are hereby reserved,” etc., was not intended to 
operate upon lands which had not been found to 
contain valuable mineral deposits and were not ap¬ 
parently mineral lands. Davis v. Wiebold, 139 U. 
S., 516, 11 Sup. Ct. 628, 35 L. Ed. 238. The State 
provided for the classification so as to designate the 
lands reserved and offered all for sale through the 
same officers, and it cannot be said that there was an 


12 


intention to have a secret reservation of that which 
was not known. We are not called upon to decide 
what would be the effect of prior actual knowledge 
by the purchaser of the existence of minerals in the 
land. In the case last cited, language very similar 
to that used in our statute was held to reserve only 
such lands as were known to contain minerals; and^ 
a sale having been made, and the land patented, be¬ 
fore it was knowm that there were mineral deposits 
therein, the purchaser took the land and all min¬ 
erals contained in it. Under our decisions a sale by 
the State and compliance by the purchaser gives a 
vested right in the land. In support of his conten¬ 
tion, respondent claims that under Article 3498n 
Armstrong was required to file with his application 
to purchase an affidavit to the effect ‘‘that there is 
not, to the best of his knowledge and belief, any of 
the minerals embraced in this title thereon,^^ and, 
he having failed to file it, the commissioner had no 
authority to award the land to him. The language 
“whenever any application shall be made to buy or 
obtain title to any of the lands embraced in Article 
3498a,refers only to such lands as are reserved by 
that article, which is expressed to be “all public- 
school, university and asylum lands containing valu¬ 
able mineral deposits,Lands which do not con¬ 
tain minerals are not embraced in that article; 
hence the oath prescribed by that article does not 
apply to lands classed as agricultural, and not known 
to be mineral, lands. This provision furnishes a 
strong support for the construction that we have 
placed upon Article 3498a, because it implies that 
reserved lands may be sold under the general pro¬ 
visions of the law, for there is no other law under 
which it could be bought except the title regulating 
the sale of mineral lands. For example, if land 
classed as agricultural, pasture, or timbered has 


13 


been marked by the geological and mineralogical 
survey as mineral, and an actual settler believes it is 
not so in fact, he can file his application under the 
general law, and, in addition, take oath prescribed 
by Article 3498n, and thus make an issue as to 
whether the land is within the meaning of the law, 
which the commissioner of the general land office is 
empowered to decide, and may sell it as non-mineral 
bearing land. It is, however, provided that in such 
case the person who may purchase land that has 
been once reserved can only acquire the title sub¬ 
ject to the reservation of all minerals which may be 
contained in it. The reservation is confined to such 
land as may be sold by commissioner upon investiga¬ 
tion, and by no possible construction can it be ap¬ 
plied to all of the public school, university, and asy¬ 
lum lands. * * * The interpretation contended for by 
the respondent would render void all grants of the 
public school, university and asylum lands which 
have been made since 1889, and, under the most 
favorable view, would convert those grants from 
fee-simple, absolute titles into titles subject to the 
claim of the State for all minerals that might be 
found in them. The inclosures of those men who 
have settled upon the land would be liable to the in¬ 
trusion of prospectors and speculators, with the right 
to dig ditches, sink shafts, and bore wells for the pur¬ 
pose of ascertaining whether or not minerals are 
contained therein. No provisions are made for pro¬ 
tecting the rights of the State's vendees, nor rules, 
regulating the operations of the seeker after min¬ 
erals, but the unqualified right is given to explore 
the lands without regard to the rights of others, 
which shows that it was not intended to apply to 
lands which the State had sold. It is inconceivable 
that the legislature intended that such results should 
flow from the policy that it adopted, which at all 


14 


times has been most liberal for the protection of the 
actual settler upon the public domain. 

"‘Upon the admitted facts, the relator is entitled 
to receive a patent for the land in question, and it is 
ordered that a writ of mandamus issue, directed to 
Charles Rogan, commissioner of the general land 
office, commanding him to receive the treasurer's 
receipt and the patent fee, and that he prepare and 
sign a patent to relator for the land described, and 
present it to his excellency, J. D. Sayers, governor 
of Texas, for his signature. It is ordered that re¬ 
spondent pay all costs." 

The 1907 law, quoted above. Section 6f, which 
went into effect August 10, 1907, appears to have 
received no judicial interpretation. It was carried 
into the Revised Statutes of 1911 as Article 5433, 
and today stands unrepealed. The subject matter 
of the article is: “The land which is now or may 
hereafter be classed as mineral." Such land may 
be sold for agricultural or grazing purposes, but on 
the express condition that the minerals are reserved 
to the State and such reservation shall be stated in 
the application to purchase. On the authority of 
Gracey v. Hendrix, 51 S. W., 846, and Burnam v. 
Terrell, 78 S. W., 500, if the application made after 
August 10, 1907, to purchase any lands which had 
theretofore been classed as mineral, omitted from 
the application such reservation, the sale made by 
the commissioner might be held a void sale, because 
not authorized by the statute. (See Camp v. Smith, 
166 S. W., 22). If, however, such sale should be 
upheld it would inevitably be on the ground that the 
land having been classed as mineral, the mineral 
right ipso facto remained in the State, notwithstand¬ 
ing the omission from the application of the required 
reservation. 

A more difficult question occurs in cases where, 


15 


the land not having been classed as mineral at the 
date of sale, the applicant has in his application 
stated such reservation. The blank forms for ap¬ 
plications furnished by the land commissioner fol¬ 
lowing the enactment of the law of 1907, under dis¬ 
cussion, all contained the following clause: “For 
the purpose of buying said land I represent that I 
am buying it for agricultural or grazing purposes 
only, and if it is classed 'MineraF the sale to me is 
upon the express condition that the minerals therein 
shall be and are reserved to the fund to which the 
land belongs. * * * ** 

The land commissioner clearly had no right to 
exact such a statement except in applications for 
the purchase of lands which had theretofore been 
classed “Mineral.'’ The including such statement 
in all applications, for lands which had not, as well 
as lands which had, been classed “Mineral” was 
justifiable only on the theory that the reservation so 
made would be deemed to apply only in the event 
the lands applied for had theretofore been classed 
“Mineral.” And yet the laws of 1913 and 1917, in 
enumerating the lands which shall be open to the 
prospecting for and development of minerals include 
“lands purchased with a relinquishment of the min¬ 
erals thereon”; and Article 5904h (Acts 1913, p. 
409, Sec. 9) contains the word “waiver” in this con¬ 
nection, as follows: “In the event any land or water 
included within the operation of this Act has here¬ 
tofore been or may hereafter be sold by the State 
with the reservation of minerals therein; or has been 
purchased by one with the waiver of mineral rights, 
such land shall be subject to prospect and lease ^ 

It would thus appear that the State is vdthout jus¬ 
tification in claiming the minerals in lands which 
had not been classed “Mineral” prior to their sale, 
when basing such claim on the waiver or relinquish- 


16 



ment occasioned by the inclusion of the statement 
above quoted in the application to purchase. 

In our opinion, resting' on the analogy to the cases 
of Greene v. Robison and Schendell v. Rogan, cited 
above, such claim will not be sustained by the courts; 
on the contrary, it will be held that the applicant 
has committed himself to no waiver or relinquish¬ 
ment unless the lands he applied to purchase had in 
fact been classed “Mineral” at the date such lands 
were placed on the market for sale; that the statute 
does not require such statement to be maae except 
in the event such lands had theretofore been classed 
“Mineral.” 

All doubt as to the mineral status of any and all 
lands sold by the State prior to the adoption of the 
Revised Statutes of 1895, viz.: September 1, 1895, 
is banished by Article 4041 thereof, as follows: 
“The State of Texas hereby releases to the owner or 
owners of the soil all mines or minerals that may be 
on the same, subject to taxation as other property.' 
This is identical v/ith Article 14, Section 7, of the 
1876 Constitution, “the effect of which was to re¬ 
lease the rights of the State to all minerals in lands 
granted prior to 1895.^’ Greene v. Robison, 210 o. 
W., 498; Cox v. Robison, 150 S. V/., 1049. It is also 
reasonably certain that the State has not reserved 
the minerals in lands sold after the adoption of the 
Revised Statutes of 1895 and prior to the enactment 
of the Act of 1913, unless such lands had been 
classed as “Mineral” at the time of such sale, and it 
is equally certain if they were classed as “Mineral” 
at the time of sale, the minerals did not pass v/ith 
the land, but are reserved in the State. 

LAWS OF 1913 AND 1917. 

Section 33 of Chapter 173 of the laws of 1913, 
page 409, reads as follows: “Chapter 1, Title 93, 


17 


of the Revised Civil Statues of 1911, relating to mines 
and mining and all other laws and parts of lav/s re¬ 
lating to the sale of mineral lands are hereby re¬ 
pealed.” 

Section 1 of the same Act, Article 5904, Vernon’s 
Sayles’ Statutes, 1914, which is substantiaiiy re¬ 
enacted by the laws of 1917, page 158, Section 1, is 
as follows: 

“All public school, university, asylum and the other 
public lands, fresh water lakes, islands, bays, 
marshes, reefs and salt water lakes, belonging to 
the State of Texas, and all lands which may here¬ 
after be so owned and all lands which have been 
heretofore sold or disposed of by the State of Texas, 
with a reservation of minerals or mineral rights 
therein, as well as all lands which may hereafter be 
sold with reservation of minerals or mineral rights 
therein, and lands purchased with relinquishment 
of the minerals therein, shall be included within the 
provisions of this Act and shall be open to mineral 
prospecting, mineral development and the lease of 
mineral rights therein in the manner herein pro¬ 
vided. Only citizens of the United States and such 
other persons as have heretofore declared or shall 
hereafter declare their intention of becoming such 
shall be entitled to acquire any rights under this Act. 
It is declared to be the policy of the State to open all 
such lands to mineral prospecting and development 
on a system providing for the payment into the State 
treasury to the credit of the permanent free school, 
university, asylum or other funds, of certain rents 
and royalties upon the gross output of any minerals 
or mineral product thereon.” 

This section was amended by laws of 1917, page 
158, Section 1, Article 5904, 1918 Supplement to 
Vernon’s Sayles’ Statutes, to read as follows: 

“All public school, university and asylum land 


18 




and other public lands, fresh water lakes, river beds 
and channels, islands, bays, marshes, reefs and salt 
water lakes belonging to the State and all lands 
which may hereafter be so owned, and all of said 
lands which have heretofore been sold or disposed 
of by the State or by its authority with a reservation 
of minerals or mineral rights therein as well as all 
lands which may hereafter be sold with the reser¬ 
vation of minerals or mineral rights therein, and 
lands purchased with a relinquishment of the min¬ 
erals therein, shall be included within the provisions 
of this Act and shall be open to the prospecting for 
and the development of the minerals and substances 
known as gold, silver, cinnabar, lead, tin, copper, 
zinc, platinum, radio-active minerals, tungsten, ores 
of aluminum, coal, lignite, iron ore, kaolin, fire clays, 
barite, marble, petroleum, natural gas, gypsum, 
nitrates, asbestos, marls, salt, onyx, turquois, mica, 
guano, bismuth and bismuth-bearing minerals, as¬ 
phalt, potash compounds, sulphur, granite, mag¬ 
nesia, fuller’s earth, and molybdenum and molybde¬ 
num-bearing minerals upon the terms and conditions 
provided in this Act.” 

It will be observed that the laws of 1913 and 1917 
are practically identical insofar as is concerned the 
description of the classes of lands in which the State 
claims the minerals and mineral rights, with the ex¬ 
ception that the item of ^‘river beds and channels’^ 
is added in the 1917 Act. 


/ 


19 


GENERAL CONCLUSIONS 


First. All lands sold by the State prior to Sep¬ 
tember 1, 1895, whether classed as mineral or not 
carry with them the minerals thereon free from any 
claim of the State of Texas, and are not open to 
prospect. 

Second. All lands sold by the State since Septem¬ 
ber 1, 1895, carry with them the minerals and are 
not open to prospect unless at the time of such sale 
they were classed as mineral lands with mineral 
reservation. 

Third. That all lands sold by the State since 
September 1, 1895, which were classified at the date 
of sale as mineral lands did not carry the minerals 
and are open to prospect and development. 

Fourth. All lands now owned by the State, fresh 
water lakes, islands, bays, marshes, reefs and salt 
water lakes, and river beds and channels belonging 
to the State are open to prospect. 

Fifth. All lands hereafter acquired by the State 
are open to prospect. 

Sixth. All lands hereafter sold by the State if 
classed as mineral at the time of such sale are open 
to prospect. 

Seventh. The general relinquishment of minerals 
in the application to purchase is without any effect, 
except as to lands classed as ^^MineraF’ at the date 
of purchase. 


20 


m 




m 


EXCESS ACREAGE 

Many sections of land sold by the State have, on 
re-survey, been found to contain a larger acreage 
than that shown by the original survey. The legis¬ 
lature of 1889, Laws 1889, page 103, (Rev. St. 1895, 
Arts. 4274-4276; Sayles Rev. St. 1914, Arts. 5396- 
5398) provided that all excess acreage in certain of 
such surveys be donated to the public free school 
fund, made provisions for the resurvey of such sec¬ 
tions and gave the purchaser thereof from the State 
the prior right for a period of six months thereafter 
to purchase such excess on the same terms as the 
original purchase. 

This law, including the preamble thereto, is as 
follows: 

‘‘An Act to provide for the ascertainment, distri¬ 
bution, and sale of the excesses in surveys of land 
made for the school fund and to validate surveys of 
land as herein provided. 

“Section 1. Be it enacted by the Legislature of 
the State of Texas: that all surveys and blocks of 
surveys heretofore made by virtue of valid alternate 
scrip be and the same are hereby declared to segre¬ 
gate from the mass of the public domain all the land 
embraced in said surveys, or blocks of surveys, as 
evidenced by the corners and lines of same, or by 
calls for natural or artificial objects, or the calls for 
the corners and boundaries of other surveys or by 
the maps and other records in the general land 
office. 

“Sec. 2. That all excess in said surveys or blocks 
of surveys are hereby donated and declared to be¬ 
long to the public free school fund of the State; and 


21 





✓ 


it shall be the duty of the commissioner of the gen¬ 
eral land office to ascertain, by any and all means 
practicable, the existence and extent of such ex¬ 
cesses, and to provide for and direct such surveys, 
or corrected surveys, as may be necessary for this 
purpose; provided, that where such surveys were 
made in blocks of two or more surveys, said respec¬ 
tive surveys shall remain on the ground consecu¬ 
tively as placed therein, as shown by the maps, 
sketches, and field notes originally returned to the 
general land office; provided, that the person who 
has already purchased, or who may hereafter pur¬ 
chase from the State, the particular section to which 
surplus shall by such resurvey be made contiguous, 
shall have the prior right for the period of six months 
after such resurvey shall have been made, in which 
to purchase such excess on the same terms on which 
such purchaser has already bought or may buy. 

‘‘Sec. 3. That all such surveys which under the 
direction of the commissioner of the general land 
office have been or may be hereafter corrected, so 
that all excess in the original surveys shall be placed 
in the surveys belonging to the public free schools, 
are hereby validated and the action of the commis¬ 
sioner is hereby ratified; and he is directed and 
authorized to issue patents to the owners thereof, 
and to sell such surveys belonging to the public free 
schools securing to the State the benefit of such ex¬ 
cesses.^' 

This act is interpreted by the Supreme Court in 
the case of Wright v. Gale, 140 S. W., ‘41. The de¬ 
cision expressly limits its application to lands sold 
after this law went into effect (March 22, 1889) the 
court declining to determine whether or not “the 
Legislature has attempted to empower the Commis¬ 
sioner of the General Land Office to do this as to 
lands sold at the time the statute took effect. 


22 


’‘This right (to purchase the excess) extends like¬ 
wise to the vendee of the original purchaser/^ Con¬ 
tinuing, the court holds: 

“Should the commissioner, after having ascer¬ 
tained the existence and extent of any such surplus, 
desire to segregate the excess from the body of the 
section or survey, he would be required, as implied 
from the context of the Act, to begin the resurvey 
at the beginning corner of the original survey and to 
leave the section or survey in a body and as near a 
square as may be practicable, and, after giving the 
purchaser his quantum of acreage, to lop off the ex¬ 
cess. Where the segregation of the excess cannot 
be made in conformity with the rule laid down as 
above on account of the peculiar or irregular shape 
of the survey containing the excess, the State may re¬ 
sort to a partition of the excess section or survey in 
such manner and under the same rules of equity as 
joint individual owners of land; the right of segre¬ 
gation given the commissioner as the representative 
of the State being not an exclusive remedy.’’ 

On rehearing, 143 S. W., 141, Judge Dibrell says: 
« * * * That no misunderstanding may arise to 
our meaning in laying down this rule in our original 
opinion, we amend that rule there laid down for 
segregating the excess of land found to exist in any 
survey or section, when it becomes necessary to make 
such segregation, by adding thereto that the lines 
shall be run co-extensive with the survey or section 
as made on the ground, and the excess as well as the 
quantum of acreage sold the original purchaser shall 
be left in a body and as near a square form as prac¬ 
ticable.” 

The rule thus laid down is, at best, only a sug¬ 
gestion by the Supreme Court of a remedy in such 
cases of excess. The opinion of the Court of Civil 


23 


Appeals in the same case (136 S. W., 1163) holds as 
follows: 

The survey, 110, was originally sold in 1898 by 
the State to D. Currie who then sold it to G. W. Gale. 
The original survey showed 640 acres but as located 
on the ground covered 685 acres. Gale sold 200 
acres out of the north end of the survey to H. A. 
Robertson describing the same by metes and bounds 
with its location on or near the base line of the sec¬ 
tion. Later, on the same day. Gale conveyed to 
plaintiff, Wright, the remaining portion of the sur¬ 
vey by the acre, the same being 485 acres, at $23 
per acre, giving the field notes. No action had been 
taken by the land office to ascertain the excess but 
the evidence shov/ed an excess of 45 acres. 

Wright sued Gale to recover the amount paid by 
him to Gale for the excess, viz: 45 acres at $23 per 
acre, on the ground that by the statutes above quot¬ 
ed the excess belonged to the public school fund and 
was not conveyed to him by Gale’s deed. 

The Court of Civil Appeals held that he could not 
recover, because the land office had not segregated 
the excess, if any, and until it did so, there was no 
basis for the assumption that the whole or any part 
of the excess would be deducted from the 485 acres 
conveyed to the plaintiff Wright; that all or part of 
the excess might be taken out of the 200 acres con¬ 
veyed to Robertson. 

The Supreme Court (140 S. W., 91) refused the 
writ of error, 'Tor the reason that the result reached 
by the Court of Civil Appeals is substantially cor¬ 
rect;” continuing: '* * * * we deem it proper that 
this court should, as far as possible, construe the 
statute referred to and suggest a remedy for those 
involved in controversies arising out of such excess 
claims.” 

The construction then placed upon the statutes by 


24 


way of this suggestion is entitled to the respect which 
its eminent source confers upon it, but it must be re¬ 
membered that the State was not a party to the suit 
and the opinion can at best be considered only as an 
indication of what the Supreme Court would be in¬ 
clined to hold in a case whose facts v/ere similar to 
the case then under consideration. 

If we attempted to apply the rule there laid down 
to a particular case it might be found most confusing. 
A portion of the section purchased from the original 
owner might be found very valuable as oil land, 
whereas the rest of the section would be of little 
value comparatively speaking. A strict application 
of the above rule might result in lopping off as ex¬ 
cess the valuable oil land; or it might be that the ap¬ 
plication of such rule would result in injustice as 
between tv/o or more owners. 

We believe the State v/ould be put to an equitable 
partition through the courts v/here the rights of pur¬ 
chasers either original or subsequent would be pro¬ 
tected in the segregation or partition of any excess, 
and that no definite rule can be laid down. 

By Article 5399, Revised Statutes, 1911, ‘‘The 
provisions of this law shall not apply to nor affect 
the rights of the third persons heretofore acquired 
in good faith.” 

By Article 5400, Revised Statutes, 1911, “Nothing 
in the preceding four articles shall apply to any lands 
for which patents have been issued.” 

These are Sections 4 and 5 of Chapter 90, Laws of 
1889, brought forward in the 1911 Revised Statutes. 
The only effect of the bringing forward of these ar¬ 
ticles is to continue the operation of the Act of 1889, 
and the exceptions as to the rights of third parties 
theretofore acquired in good faith and as to patents 
which had already been issued, relate to lands pur¬ 
chased from the State prior to 1889. 


25 


It should be carefully noted that Chapter 90, Laws 
of 1889, applies only to “surveys and blocks of sur¬ 
veys heretofore made by virtue of valid alternate 
scrip/’ The preamble to the Act reads as follows: 
“An Act to provide for the ascertainment, distribu¬ 
tion and sale of the excesses in surveys of lands made 
for the school fund, and to validate surveys of land 
as herein provided.” 

The language of the preamble appears broader 
than that of the Act itself. Section 2, Article VII 
of the Constitution, is as follows: 

“All funds, lands and other property heretofore 
set apart and appropriated for the support of public 
schools, all the alternate sections of land reserved oy 
the State out of grants heretofore made or that may 
hereafter be made to railroads, or other corpora¬ 
tions, of any nature v/hatsoever, one-half of the puo- 
lic domain of the State, and all sums of money that 
may come to the State from the sale of any portion 
of the same, shall constitute a perpetual public 
school fund.” 

It would therefore appear that the Act of 1889, 
Chapter 90, relates only to that part of the lands be¬ 
longing to the school fund described as: “All the al¬ 
ternate sections of land reserved by the State out of 
grants heretofore made or that may hereafter be 
made to railroads, or other corporations, of any na¬ 
ture whatsoever.” 

While there are no decisions upon the subject in 
Texas, it is evident that excess acreage in surveys 
cannot be filed upon until such excess acreage is 
segregated. After segregation, however, so that 
the excess area is defined a filing may be made there¬ 
on in the office of the county clerk as upon any other 
lands, subject, however, to the owner’s preference 
right to purchase the excess under the terms of his 
original purchase. His preference right runs for 


26 


six months from the time of the resurvey and the dis¬ 
covery of such excess and not from the time of its 
segregation. We believe also that the excess can be 
segregated by the acts of the owners themselves in 
applying for a patent on less than the whole section 
if such application is accepted by the Land Commis¬ 
sioner and patent issued. This would operate as a 
segregation of the excess in such survey. If at the 
time of the original purchase the land did not carry 
the minerals the purchaser's preference right to pur¬ 
chase the excess would not in any event carry any 
preference right to the minerals. 



T 


v 

\ 


MINERAL LAWS AFFECTING 
OIL AND GAS 

(Enacted by 1917 Legislature and Now in Force) 

Articles 5904 et seq., Sayles Revised Civil Stat¬ 
utes, 1914. 

Article 5904 (3498a). Lands open to prospect¬ 
ing for minerals. —All public school, university and 
asylum land and other public lands, fresh water 
lakes, river beds and channels, islands, bays, marsh¬ 
es, reefs and salt water lakes belonging to the State 
and all lands which may hereafter be so owned and 
all of said lands v/hich have heretofore been sold or 
disposed of by the State or by its authority with a 
reservation of minerals or mineral rights therein as 
well as all lands which may hereafter be sold with 
the reservation of minerals or mineral rights there¬ 
in, and lands purchased with a relinquishment of the 
minerals therein, shall be included within the pro¬ 
visions of this Act and shall be open to the prospect¬ 
ing for and the development of the minerals and sub¬ 
stances known as gold, silver, cinnabar, lead, tin, 
copper, zinc, platinum, radio-active minerals, tung¬ 
sten, ores of aluminum, coal, lignite, iron ore, kaolin, 
fire clays, barite, marble, petroleum, natural gas, 
gypsum, nitrates, asbestos, marls, salt, onyx, tur- 
quois, mica, guano, bismuth and bismuth bearing 
minerals, asphalt, potash compounds, sulphur, gran¬ 
ite, magnesia, fuller’s earth and molybdenum and 
molybdenum bearing minerals upon the terms and 
conditions provided in this Act. (Acts 1913, p. 409,, 
Sec. 1; Act March 16, 1917, Ch. 83, Sec. 1). 


29 


Article 5904a. Persons entitled to prospect for 
isninerais; rules.— Any person or association of per¬ 
sons, corporate or otherwise, being a citizen of the 
United States or having declared an intention of be¬ 
coming such, desiring to obtain the right to prospect 
for and develop the minerals and substances named 
above that may be in any of the areas included here¬ 
in may do so under the provisions of this Act to¬ 
gether with such rules and regulations as may be 
adopted by the Commissioner of the General Land 
Office relative thereto and necessary for the execu¬ 
tion of the purposes of this Act. (Acts 1913, p. 409, 
-Sec. 2; Act March 16, 1917, Ch. 83, Sec. 2). 

Article 5904b. Application for right to prospect 
for petroleum oil and natural gas in surveyed lands; 
amount and location of lands. —One desiring to ob¬ 
tain the right to prospect for and develop petroleum 
oil and natural gas that may be in any of the sur¬ 
veyed areas included herein shall file with the coun¬ 
ty clerk an application in writing giving a designation 
of same sufficient to identify it. The county clerk 
shall, upon receipt of one dollar as a filing fee, file 
and record the application and note the same on his 
record of surveys opposite the entry of the proper 
survey, giving the time of filing. When one has ob¬ 
tained four sections or that equivalent eligible to be 
embraced in one permit such applicant shall not ob¬ 
tain any more land within two miles thereof, but if 
one obtains less than four sections eligible to be em¬ 
braced in one permit such one may obtain such addi¬ 
tional area within two miles of the other area as will 
equal four sections. One shall not obtain more than 
one thousand acres within one mile of a well pro¬ 
ducing petroleum. (Acts 1913, p. 409; Sec. 3; Acts 
1913, S. S., p. 26, Sec 1 ; Act March 16, 1917, Ch. 83, 
iSec. 3). 



Article 5S04c. Permit to prospect for petroleuni 
and gas in unsurveyed lands; number of acres.—> 
One desiring to obtain the right to prospect for and 
develop petroleum and natural gas in any of the 
State's unsurveyed areas named in this Act shall file 
with the county surveyor an application in writing 
for each area applied for, giving a designation of 
same sulficient to identify it, but such area shall not 
exceed 2560 acres. Upon receipt of one dollar filing 
fee the surveyor shall file and record the applica¬ 
tion. (Acts 1913, p. 409; Acts 1913, S. S., p. 26, 
Sec. 2; Act March 16, 1917, Ch. 83, Sec. 4). 

Article 5904d. Issuance of permit to prospect 
for oil and gas.— When the commissioner receives 
an application that was filed with the county clerk 
or an application that was filed with the surveyor and 
the field notes and plat, one dollar filing fee and ten 
cents per acre for each acre applied for and a sworn 
statement by the applicant showing what interest he 
has in other permit, lease or patent issued under this 
Act and in good standing, he shall file same, and if 
upon examination the application or the application 
and field notes are found correct and the area ap¬ 
plied for is within the provisions of this Act the com¬ 
missioner shall issue to the applicant or his assignee 
a permit conferring upon him an exclusive right to 
prospect for and develop petroleum and natural gas 
within the designated area for a term not to exceed 
two years. (Acts 1913, p. 409, Sec. 5; Act March 
16, 1917, Chap. 83, Sec 5). 

Article 5904e. Development work for petroleum 
and gas; filing statement in General Land Office; 
forfeiture; removal of product before obtaining 
lease, prohibited. —Before the expiration of twelve 
months after the date of the permit the owner there¬ 
of shall in good faith begin actual work necessary ta 


31 


the physical development of said area and if petro¬ 
leum or natural gas is not sooner developed in com¬ 
mercial quantities the owner or manager shall, with¬ 
in thirty days after the expiration of one year from 
the date of the permit file in the General Land Office 
a sworn statement supported by two disinterested 
credible persons that such actual v/ork was begun 
within the first twelve months aforesaid and that a 
bona fide effort to develop the said area was made 
during the twelve months preceding the filing of the 
statement and showing what work was done and ex¬ 
penditures incurred and whether or not petroleum 
or natural gas had been discovered in commercial 
quantities. A failure to file the statement herein 
provided for within the time specified or the filing of 
a statement untrue or false in material matters shall 
subject the permit to forfeiture and the termination 
of the rights of the owner. The owner of a permit 
shall not take, carry away or sell any petroleum or 
natural gas before obtaining a lease therefor; pro¬ 
vided, such quantity as may be necessary for the 
continued development of the area before obtaining 
a lease may be used without accounting therefor. 
(Acts 1913, p. 409, Sec. 6; Act March 16, 1917, Ch. 
83, Sec. 6; Act March 31, 1917, Ch. 170, Sec. 1). 

Article 5904f. Repealed, and subject matter 
carried into Article 5904e, ante. 

Article 5904g. Lease of area for development 
of petroleum or natural gas; conditions of lease.— 

If at any time within the life of a permit one should 
develop petroleum or natural gas in commercial 
quantities the owner or manager shall file in the gen¬ 
eral land office a statement of such development 
within thirty days thereafter, and thereupon the 
owner of the permit shall have the right to lease the 


32 


area included in the permit upon the foliov/ing con¬ 
ditions : 

1. An application and a first payment of two dol¬ 
lars per acre for a lease of the area included in the 
permit shall be made to the commissioner of the 
general land office within thirty days after the dis¬ 
covery of petroleum or natural gas in commercial 
quantities. 

2. Upon the payment of two dollars per acre for 
each acre in the permit a lease shall be issued for a 
term of ten years or less, as may be desired by the 
applicant, and with the option of a renewal or re- 
nev^als for an equal or shorter period, and annually 
after the expiration of the first year after the date 
of the lease the sum of two dollars per acre shall be 
paid during the life of the lease, and in addition 
thereto the owner of the lease shall pay a sum of 
money equal to a royalty of one-eighth of the value 
of the gross production of petroleum. The owner 
of a gas well shall pay a royalty of one-tenth of the 
value of the meter output of all gas disposed of off 
the premises. 

3. The royalties shall be paid to the State 
through the commissioner of the general land office 
at Austin, monthly during the life of the lease. All 
payments shall be accompanied by the sworn state¬ 
ment of the owner or manager or other authorized 
agent showing the amount produced since the last 
report and the market value of the output and a copy 
of all pipe line receipts, tank receipts, gauge of all 
tanks into which petroleum may have been run, or 
other checks and memoranda of amount put out or 
into pipe lines or tanks or pools. The books and 
accounts, the receipts and discharges of all pipe 
lines, tanks and pools and gas lines and gas pipes 
and all other matters pertaining to the production, 
transportation and marketing of the output shall be 


33 



open to the examination and inspection at all times 
by the commissioner of the general land office or his 
representative or any other person authorized by the 
governor or attorney general to represent the State. 
The value of any unpaid royalty and any sum due 
the State under this Act upon any lease shall be¬ 
come as prior lien upon all production produced up¬ 
on the leased areas and the improvements situated 
thereon to secure the payment of any royalty and 
any sum due the State arising under the operation 
of any portion of this Act. 

4. The permit or lease shall contain the terms 
upon which it is issued including the authority of the 
commissioner to require the drilling of wells neces¬ 
sary to offset wells drilled upon adjacent private 
land, and such other matters as the commissioner 
may deem important to the rights of the applicant 
or the State. (Acts 1913, p. 409, Sec. 8; Act March 
16, 1917, Ch. 83, Sec. 7). 

Article 5904h. Compensation to surface owners. 
—In the event the surface of an area included with¬ 
in the operations of this Act has heretofore been or 
may hereafter be acquired by one prior to the filing 
of an application under the provisions herein, such 
area shall nevertheless be subject to, prospect and 
lease as provided herein but the owner of the permit 
or lease shall pay to the owner of the surface annu¬ 
ally in advance during the life of the permit or lease, 
ten cents per acre and the sum so paid and accepted 
by the surface owner shall be full compensation for 
all damages to the surface. (Acts 1913, p. 409, 
Sec. 9; Act March 16, 1917, Ch. 83, Sec. 8). 

Article 5S04i. Note. —^Section 10 of the repealed 
Act was amended by Acts of 1913, first called ses¬ 
sion, page 26, Section 3, The amendatory Act is not 
expressly repealed, but it is, no doubt, superseded 

34 


by Section 2 of the new Act, set forth ante as Article 
5904b, limiting the amount of land that can be em¬ 
braced in one permit within a given locality. 

Article 5904j. Association applying to file state¬ 
ment of membership; permit; lease. —Every person 
or association of persons, corporate or otherwise, 
applying for a permit, lease or patent shall file with 
the application a sworn statement showing what in¬ 
terest the applicant has in any other permit or lease 
issued by the State and in good standing at the date 
of the statement. (Acts 1913, p. 409, Sec. 11; Act 
March 16, 1917, Ch. 83. Sec. 9). 

Article 5904k. Repealed, and its subject matter 
carried into Section 6 of the new Act, ante. Article 
5904e. 

Article 5904p. Definitions and requirements; 
abandonment or relinquishment.— The general pro¬ 
visions in this and the following Section shall apply 
to all the foregoing provisions so far as applicable. 

Surveyed land within the meaning of this Act shall 
include all tracts for which there are approved field 
notes on file in the general land office and eighty- 
acre tracts and multiples thereof of such surveys. 

Unsurveyed areas within the meaning of this Act 
include all areas for which there are no approved 
field notes on file in the general land office. 

All applications for surveyed land shall be filed 
with the clerk of the county in which the tract or a 
portion thereof is situated or with the clerk of the 
county to which such county may be attached for 
judicial purposes and accompanied by one dollar 
filing fee, and it shall be filed in the general land 
office within thirty days after it was filed with the 
county clerk and accompanied by one dollar filing 
fee. 

All applications for unsurveyed areas shall be 



filed with the county surveyor, or his deputy, of the 
county in which the area or a part thereof is situated, 
accompanied by one dollar filing fee, but if such 
county has no surveyor then the application shall 
be filed with the clerk of the proper county and by 
him recorded in the surveyor’s records, and in that 
event the area may be surveyed by the surveyor of 
the nearest county as now provided by law. The 
area shall be surveyed within ninety days and the 
application, field notes and plat shall be filed in the 
general land office, accompanied by a filing fee of 
one dollar, within one hundred days after the date 
of the filing of the application. 

The payment per acre required to be made before 
the issuance of a permit shall be paid annually there¬ 
after during the life of the permit or lease. 

A separate written application shall be made for 
the area desired in a permit. No permit, lease or 
patent shall embrace the area in two or more appli¬ 
cations. 

No application, permit, lease or patent shall em¬ 
brace a divided area. 

Whole tracts of surveyed land may be applied for 
as a whole or in eighty-acre tracts or multiples there¬ 
of without furnishing field notes therefor. 

A duplicate of every permit and lease shall be 
kept in the general land office. 

The area in each permit shall be developed inde¬ 
pendently of other areas. 

When one desires a lease or patent any one or 
more whole tracts in the permit may be abandoned 
by relinquishment filed in the general land office as 
herein provided and thereupon obtain a lease or pat¬ 
ent upon the remaining area; provided such remain¬ 
ing area is in a solid body. 

An owner may relinquish a permit or lease at 
any time by having the deed of relinquishment ac- 


36 


knowledged, recorded by the proper county clerk 
and filed in the general land office accompanied by 
one dollar filing fee. The commissioner of the gen¬ 
eral land office shall mail notice to the proper county 
clerk of the filing of the relinquishment and when 
said notice has had time through due course of mail 
to reach said clerk the area shall be subject to ap¬ 
plications as in the first instance. (Id. Sec. 16). 

Article 5904q. Disposition of proceeds. —The pro¬ 
ceeds arising from the activities under this Act which 
affects land belonging to the permanent public 
free school fund, the permanent university fund and 
the permanent funds of the several asylums shall be 
credited to the permanent funds of said institutions, 
and the proceeds arising from the activities affecting 
other areas shall be credited to the general revenue. 

Article 5S04r. Sale or other disposition of per¬ 
mit or lease; registration; sub-lease. —The owner of 
a file or permit or lease under any provision of this 
Act may sell same and the rights secured thereby at 
any time, also fix a lien of any kind thereon to any 
person, association of persons, corporate or other¬ 
wise, who may be qualified to receive a permit or 
lease in the first instance; provided, the instrument 
evidencing the sale or lien shall be recorded in the 
county where the area or part thereof is situated or 
in the county to which such county may be attached 
for judicial purposes and same shall be filed in the 
general land office within sixty days after the date 
thereof accompanied with a filing fee of one dollar, 
and if not so filed the contract evidenced by said in¬ 
strument shall be void and the obligations therein 
assumed shall not be enforceable; provided further, 
a sub-lease contract need not be filed in the general 
land office. (Act March 16, 1917, Ch. 83, Sec. 18). 


37 


Article 5904s. Forfeiture of rights under permit 
or lease. —If a permit or lease should be issued upon 
a statement by the applicant which is false or untrue 
in material matters, or should the owner of a permit 
fail or refuse to begin in good faith the work neces¬ 
sary to the development of the area within the time 
required, or should the owner of a permit fail or re¬ 
fuse to proceed in good faith and with reasonable dil¬ 
igence in a bona fide effort to develop an area includ¬ 
ed in his permit after having begun the development, 
or should the owner of a permit fail or refuse to ap¬ 
ply for a lease within the prescribed time, or should 
the owner of a lease fail or refuse to proceed in good 
faith and with reasonable diligence and in a bona 
fide effort to develop, operate and put out the min¬ 
eral or other substance at any time during the life 
of the lease, or should the owner of a lease fail or 
refuse to make proper remittances in payment of 
royalty or other payments or fail or refuse to make 
the proper statement, or fail to furnish the required 
evidence of the output and market value and mater¬ 
ial matters relating thereto when requested, or fail 
to make the annual payment on the area when re¬ 
quested so to do the permit or lease, as the case may 
be, shall be subject to forfeiture, and when the com¬ 
missioner is sufficiently informed of the facts which 
subject the permit or lease to forfeiture he may de¬ 
clare same forfeited by proper entry upon the dupli¬ 
cate permit or lease kept in the general land office. 
When forfeiture has been declared a notice of that 
fact shall be mailed to the proper county clerk and 
the area shall be subject to the application of an¬ 
other than the forfeiting owner when the notice has 
had time to reach the county clerk through due 
course of mail; provided, the commissioner may ex¬ 
ercise large discretion in the matter of requiring one 
to develop gas wells, and provided further, that all 


88 


forfeitures may, within the discretion of the commis¬ 
sioner be set aside and all rights reinstated before 
the rights of another intervene. (Id. Sec. 19). 

Article 5904ss. Use of timber and occupancy of 
surface; compensation to surface owner. —An owner 
of any claim for any mineral or substance included 
in this Act may fell and remove for building or min¬ 
ing purposes any timber upon any of the unsold 
areas included within this Act, and shall also have 
the right to occupy within the limits of his applica¬ 
tion, permit or lease, so much of the surface thereof 
as may be necessary for the development of the min¬ 
erals and substances therein, and shall have the 
right of ingress to and from the area embraced in 
the file, permit, lease or patent. Ten cents per 
acre shall be paid to the owner of the surface and 
when accepted by the owner, it shall be deemed full 
compensation for such damages as may be occa¬ 
sioned to the surface through the occupancy and 
operation by the owner of the permit, lease or pat¬ 
ent. (Id. Sec. 20). 

Article 5904t. Sale of surface without minerals. 
—Neither the filing of an application under any pro¬ 
vision of this Act nor the issuance of a permit or 
lease on any of the unsold land included herein shall 
prevent the sale of the surface without the minerals 
and in case of such sale subsequent to the posting of 
any notice or the filing of an application the pur¬ 
chaser shall not be entiled to the ten cents per acre 
that is provided for owners of the surface at the time 
of filing nor shall such owner be entitled to any dam¬ 
ages that may be occasioned by the working of any 
area. (Id. Sec. 21). 

Article 5904tt. Prevention of pollution of water. 

—All development in water or on islands, marshes, 
reefs or river beds and channels shall be done under 


such regulations as will prevent the pollution of the 
water and for the prevention of such pollution the 
commissioner of the general land office may call up¬ 
on the game, fish and oyster commissioner for as¬ 
sistance in the adoption and enforcement of rules 
and regulations for the protection of the waters from 
such pollution. The commissioner of the general 
land office may cancel a claim, location, file permit 
or lease or patent for a failure or refusal of the own¬ 
er to comply with such rules and regulations as may 
be adopted. (Id. Sec. 22). 

Article 5S04u. Discovery of misieral substance 
other than that included in peiTnit; preference right 
to file claim.—^Should any mineral or substance 
within the provisions of this Act, other than those 
included in the permit or lease under which one is 
operating, be discovered while the area is being 
worked for the minerals and substances embraced 
in such permit or lease, the ov/ner thereof shall have 
a preference right for sixty days after such discovery 
in which to file on the area allowed one for such 
mineral or other substance by complying with the 
provisions of this Act relating to the mineral or sub¬ 
stance so discovered, but shall not be required to 
pay either of the additional ten cents per acre to 
the State or the owner of the surface, and the re¬ 
maining portion of said area shall be subject to the 
application of others in the same manner as if there 
were no pre-existing file thereon. (Id. Sec 23). 

Article 5904vv. Administration of Act; rules.—■ 
The commissioner of the general land office shall 
have the general supervision of all matters necessary 
for the proper administration of this Act and he is 
authorized to adopt rules and regulations and to 
alter or amend them from time to time as he may 


40 



deem necessary for the protection of the interests in¬ 
volved and not inconsistent with the provisions here¬ 
in. (Id. Sec. 26). 

Article 5904w. Rights subject to taxation.-^— 
Rights acquired under this Act shall be subject to 
taxation as is other property. (Id. Sec. 27). 

Articles 5906-5909. Repealed by Act March 16, 
1917, Chapter 83, Section 28. See Articles 5904- 
5904w, ante. 

Articles 5910-5916. Repealed. 

Articles 5917, 5917a, 5919-5920j. Repealed by 
Act March 16, 1917, Chapter 83, Section 28. See 
Articles 5904-5904w, ante. 


41 








FORMS 


[FORM No. 1] 

PETROLEUM AND GAS. 

Prospect application on Surveyed School, University and 
Asylum Land. (Under Sec. 3, Chap. 83, Act Approved March 


16, 1917). 

Postoffice., Date. 

To the County Clerk of.County; 


I am a citizen of the United States and desire to obtain the 
right to prospect for and develop petroleum and natural gas 

on the following described land: .Sec., 

Block., Township., Grantee., 

Certificate., aggregating...acres, 

in.County, containing respectively 

.acres. 

(If the tract applied for is less than a whole survey appli¬ 
cant should here describe the land by giving field note bound¬ 
aries, but an actual survey is not necessary). 


Applicant. 

Notes: 

See general provisions, Article 5904p. 

Attention is directed to the following require¬ 
ments : 

(a) Whole tracts of surveyed land may be ap¬ 
plied for as a whole or in eighty-acre tracts or mul¬ 
tiples thereof without furnishing field notes there¬ 
for. 


48 
























(b) No application shall embrace a divided area. 
That is, all the tracts applied for in one application 
must touch, one to another. 

(c) This application must be filed for record in 
the office of the county clerk of the county in which 
the land or a portion thereof is situated; filing fee 
$1.00. Within 30 days after such filing the appli¬ 
cation must be filed in the general land office; filing 
fee $1.00, which should be sent separate from the 
remittance of the 10 cents per acre (see (d) below). 

(d) When sent to the land office the application 
must be accompanied by cash, or m.oney order or 
Austin Exchange, in an amount equal to 10 cents per 
acre on the entire acreage embraced in the applica¬ 
tion; also by the personal affidavit of the applicant 
as to what interest he has in other permits and leases 
issued by the State and in good standing at the date 
of the affidavit, and the certificate of the county 
clerk and county surveyor, respectively. (See forms 
Nos. 3, 4, and 5). 

(e) See Article 5904h, concerning compensation 
to surface owners. 

(f) Great care must be taken to file the applica¬ 
tion in the proper office. Take for instance an ap¬ 
plication for permit on surveyed land, filed with the 
'county surveyor; a permit issued on such application 
‘would be without authority of law and the land 
would be open to prospect on the application of one 
‘who made his application in due course of lav/. (See 
Wagner v. Robison, Land Commissioner, 201 S. W., 
171). 


[FORM No. 2] 


PROSPECT APPLICATION ON UNSURVEYED PUBLIC 

LANDS. 

(Under Sec. 4, Chap. 83, Act Approved March 16, 1917). 

PostofRce., Date. 

To the County Surveyor of.County: 

I am a citizen of the United States and desire to obtain the 
rig-ht to prospect for and develop petroleum and natural gas on 
the following described land: 

(Describe the tract or tracts of land with sufficient particu¬ 
larity so that the surveyor, for the purposes of making field 
notes and plat is fully advised of the lands sought to be de¬ 
veloped) . 


Applicant. 

Notes: 

See notes (b), (d), (e) and (f) under form No. 1. 

(a) This application must be filed with the coun¬ 
ty surveyor, or his deputy, of the county in which 
the area or a part thereof is situated; filing fee $1.00. 

(b) The law. Article 5904p, requires that the 
area shall be surveyed by the county surveyor with¬ 
in 90 days after the filing of the application. There 
bieng no provision with reference to the fees payable 
to the surveyor, the latter would be entitled to charge 
such fees as are allowed by law for such service. 

(c) The application, together with the field notes 
and plat furnished by the surveyor, must be filed in 
the general land office wdthin 100 days from the date 
of filing of the application with the surveyor. Filing 
fee in land offiice, $1.00, which should be remitted 
separately from the remittance of 10 cents per acre. 

(d) The application when sent to the land office 
must be accompanied by the papers as described in 
note (d) under Form No. 1. 


45 







[FORM No. 3] 

AFFIDAVIT OF APPLICANT. 


STATE OF TEXAS, 

County of. 

On this day. 

personally appeared before the undersigned authority, and 
after being duly sworn, did depose and say that he is a citizen 
of the United States and holds the following interest in other 
Permits, Leases or Patents issued under the Act of March 16, 
1917, and in any other mineral permit or lease issued by the 
State and which are in good standing at this date, to-wit: 


Subscribed and sworn to before me, this.day of 

., A. D. 19. 


Notary Public in and for.County, Texas. 

See Articles 5904d and 5904j. 


Note: 

This affidavit must be filed in the general land 
office with each application for petroleum and gas 
permit. See Article 5904b. 

This affidavit must also accompany any assignment 
of permit when such assignment is filed in the gen¬ 
eral land office, because assignment can be made 
only to ^‘any person, association of persons, corpor¬ 
ate or otherwise, who may be qualified to receive a 
permit or lease in the first instance.” (Art. 5904r). 


46 

















[FORM No. 4] 

CERTIFICATE OF COUNTY CLERK 


STATE OF TEXAS, 

County of. 

I, County Clerk of.County, Texas, hereby 

certify that the Mineral Filing Records of said county show 
applications to obtain the right to prospect for and develop 

petroleum, oil and natural gas on.of Section. 

Block., Tsp., Survey., as follows: 


No applications on said land, except as stated above, appear 
of record prior to that of.(the applicant) . whose appli¬ 
cation was filed the.day of.19., 

at . o’clock.M. 

Given under my hand and seal of office, this.day of 

. , A. D. 19. 


County Clerk of.County, Texas. 


47 































[FORM No. 5] 

CERTIFICATE OF COUNTY SURVEYOR 


-.5 


THE STATE OF TEXAS, 
County of. 


I, .County Surveyor, 

of.County, Texas, do hereby certify that 


there is no applicataon on file in my office to obtain the right 
to prospect for and develop petroleum and natural gas on the 

following described land situated in.County, 

Texas, ( and known on the official map of said county as). 


except 


Given under my official hand, this.day of 

., A. D. 19. 


County Surveyor.County, Texas. 


Note: 

The words in brackets in the above form are to be 
employed when the land is surveyed land. In case 
the surveyor’s certificate covers lands within “the 
State’s unsurveyed areas” (Article 5904c) the lands 
will have to be described by field notes. 

As applications on “the State’s unsurveyed area” 
only are required to be filed in the surveyor’s office 
there would seem to be no reason for furnishing the 
surveyor’s certificate in the case of applications on 
surveyed lands, but the general land office requires 
such certificate. Form No. 5 as well as Form No. 4 , 
should be filed with the application, Form No. 1, and 
the affidavit, Form No. 3. 


% 


48 




















[FORM No. 6] 

ASSIGNMENT OF APPLICATION 
STATE OF TEXAS, 

County of. 

Whereas, I,..‘of the County of 

., and State of Texas, have heretofore 

filed in the office of the County Clerk of.County, 

Texas, my application in writing for an Oil and Gas Permit on 


and thereafter have filed with the Commissioner of the General 
Land Office at Austin, Texas, said application with the said 
County Clerk's certificate endorsed thereon certifying that said 

application was filed with him on the.day of., 

19., and was recorded in Book., page., of 

Mineral Applications, and at the same time filed with said 
Commissioner $1.00 filing fee and 10 cents per acre for each 
acre applied for as aforesaid, together with my affidavit show¬ 
ing what interest I have in other mineral permits, leases and 
patents issued by the State. 

Now, therefore, in consideration of the sum of. 

Dollars and other good and valuable considerations to me in 

hand paid by., the receipt of 

which is hereby acknowledged, I, the said., 


have Sold, Assigned, Transferred and Conveyed, and by these 
presents do Sell, Assign, Transfer and Convey unto the said 

., of the County of., and 

State of Texas, all my filing or application described as afore¬ 
said, together with the Oil and Gas Permit issued or to be issued 
to me thereon by the General Land Commissioner of Texas, 
hereby selling, assigning, transferring and conveying to the 

said.all my right, title, interest and 

estate in and to said filing or application, and in and to any and 
all Permits and Leases issued or hereafter issued thereon or 

49 



























resulting therefrom, together with all rights, privileges, fran¬ 
chises and benefits acquired or to be acquired thereby or there¬ 
under. 

In witness whereof I have hereunto set my hand this. 

day of.A. D. 19. 


(Acknowledgment as in deeds. See Forms Nos. 9 
and 10). 


Note: 

See Article 5904r and Note under Form No. 3. 

(a) This assignment must be filed in the general 
land ofl^ice within 60 days after its date or it will be 
void. It should be accompanied by the affidavit of 
the assignee (Form No. 3). 

(b) If the assignment is made before the filing 
of the application in the land office, Form No. 6 may¬ 
be modified accordingly. 








[FORM No. 7] 
ASSIGNMENT OF PERMIT 


THE STATE TEXAS, 

County of. 

Know all men by these presents: 

That I,.of the County of., 

and State of., for and in consideration of the sum 

of.Dollars ($.) to me in hand paid by 

-., the receipt of which is hereby acknwledged, 

have Sold, Assigned, Transferred and Conveyed, and by these 
presents do Sell, Assign, Transfer and Convey unto the said 

.., of the County of., and 

State of., the certain oil and gas permit. 

No., issued to me by J. T. Robison, Commissioner 

of the General Land Office of the State of Texas, and under 

the seal of said office, on the .day of., 

19., together with all rights, privileges, franchises and ben¬ 

efits, and all the petroleum, gas or other products or things 
granted or conferred thereby or resulting therefrom, which 
said permit has heretofore been filed for record in the office of 

the County Clerk of.County, Texas, and which 

permit applies to the area designated therein, viz: the certain 

parcel of land situated in.County, Texas, and 

described as follows:. 

In witness whereof, I have hereunto set my hand, this. 

day of., A. D. 19. 


(Acknowledgment as in deeds. See Forms Nos. 
and 10). 


NOTE—See note (a) under Form No. 6. 


51 
























[FORM No. 8] 
OIL AND GAS LEASE 


STATE OF TEXAS, 

County of... 

Agreement, made and entered into this.day of. 

19., by and between. 


of., party of the first part, hereinafter 

called lessor (whether one or more) and. 

party of the second part, lessee. 

Witnesseth, that the said lessor, for and in consideration of 

.Dollars cash in hand paid, receipt of which is 

hereby acknowledged and of the covenants and agreements 
hereinafter contained on the part of lessee to be paid, kept and 
performed, has granted, demised, leased and let and by these 
presents does grant, demise, lease and let unto the said lessee, 
for the sole and only purpose of mining and operating for oil 
and gas, and laying pipe lines, and building tanks, towers, sta¬ 
tions and structures thereon to produce, save and take care of 
said products, all that certain tract of land situated in the 

County of., State of Texas, described as follows, 

to-wit: 


and containing.acres, more or less. 

It is agreed that this lease shall remain in force for a term 

of.years from this date, and as long thereafter as oil 

or gas, or either of them, is produced from said land by the 
lessee. 

In consideration of the premises the said lessee covenants 
and agrees: 

1st. To deliver to the credit of lessor, free of cost, in the 
pipe line to which he may connect his wells, the equal one- 
eighth part of all oil produced and saved from said leased prem¬ 
ises. 

2nd. To pay the lessor.Dollars each year in 

advance, for the gas from each well where gas only is found, 
while the same is being used off the premises, and lessor to 
have gas free of cost from any such well for all stoves and all 
inside lights in the principal dwelling house on said land during 


52 




















the same time by making his own connections with the wells 
at his own risk and expense. 

3rd. To pay lessor for gas produced from any oil well and 
used off the premises or for the manufacture of casinghead 

gas,.Dollars per year, for the time during 

which such gas shall be used, said payments to be made each 
three months in advance. 

If no well be commenced on said land on or before the. 

day of.19...., this lease shall terminate as to 

both parties, unless the lessee on or before that date shall pay 

or tender to the lessor, or to the lessor’s credit in the. 

.Bank at., or its successors, which 

shall continue as the depository regardless of changes in the 

ownership of said land, the sum of.Dollars, 

which shall operate as a rental and cover the privilege of de¬ 
ferring the commencement of a well for.months from 

said date. In like manner and upon like payments or tenders 
the commencement of a well may be further deferred for like 
periods of the same number of months successively. And it is 
understood and agreed that the consideration first recited here¬ 
in, the down payment, covers not only the privileges granted 
to the date when said first rental is payable as aforesaid, but 
also the lessee’s option of extending that period as aforesaid, 
and any and all other rights conferred. 

Should the first well drilled on the above described land be a 
dry hole, then and in that event, if a second well is not conn 
menced on said land within twelve months from the expiration 
of the last rental period which rental has been paid, this lease 
shall terminate as to both parties, unless the lessee on or before 
the expiration of said twelve months shall resume payment of 
rentals in the same amount and in the same manner as herein¬ 
before provided. And it is agreed that upon the resumption 
of the payment of rentals, as above provided, that the last pre¬ 
ceding paragraph hereof, governing the payment of rentals and 
the effect thereof, shall continue in force just as though there 
had been no interruption in the rental payments. 

If said lessor owns a less interest in the above described land 
than the entire and undivided fee simple estate therein, then 
the royalties and rentals herein provided shall be paid the lessor 
only in the proportion which his interest bears to the whole 
and undivided fee. 

Lessee shall have the right to use, free of cost, gas, oil, and 
water produced on said land for its operation thereon, except 
water from wells of lessor. 


58 










No well shall be drilled nearer than 200 feet to the house or 
barn now on said premises, without the written consent of the 
lessor. 

When requested by the lessor, lessee shall bury his pipe lines 
below plow depth. 

Lessee shall pay for damages caused by his operations to 
gfrowing crops on said land. 

Lessee shall have the right at any time to remove all machin¬ 
ery and fixtures placed on said premises, including the right to 
draw and remove casing. 

If the estate of either party hereto is assigned and the privi¬ 
lege of assigning in whole or in part is expressly allowed, the 
covenants hereof shall extend to their heirs, executors, admin¬ 
istrators, successors or assigns, but no change in the ownership 
of the land or assignment of rentals or royalties shall be bind¬ 
ing on the lessee until after the lessee has been furnished with 
a written transfer or assignment or a true coov thereof; and it 
is hereby agreed in the event this lease shall be assigned as to a 
part or as to parts of the above described lands and the as¬ 
signee or assigns of such part or parts shall fail or make de¬ 
fault in the payment of the proportionate part of the rents due 
from him or them, such default shall not operate to defeat or 
affect this lease in so far as it covers a part or parts of said 
lands upon which the said lessee or any assignee thereof shall 
make due payment of said rental. 

Lessor hereby warrants and agrees to defend the title to the 
lands herein described, and agrees that the lessee shall have the 
right at any time to redeem for lessor, by payment, any mort¬ 
gages, taxes or other liens on the above described lands, in the 
event of default of payment by lessor, and be subrogated to 
the rights of the holder thereof. 


In testimony whereof we sign, this.day of.19. 

Witness: . 

. .(Seal) 

. .(Seal) 

. ^ .(Seal) 

Notes: 

An oil lease, to be enforceable by the lessee, must 
be supported by a consideration. 

A lease in which the consideration recited is one 


54 















dollar, (or a merely nominal consideration) and tne 
lessee is not in terms bound to perform any act, hav¬ 
ing only the option to drill a well or to pay rental, 
is unilateral and unenforceable. 

Great Western Oil Co., v. Carpenter, 95 S. W., 57. 

Owens V. Corsicana P. Co., 169 S. W., 192. 

(See opinion of Supreme Court in granting writ of 
error, 188 S. W., 249). 

Hodges V. Brice, 75 S. W., 950. 

Conversely, the payment of money, other than a 
nominal amount, or the promise to begin drilling 
within a definite period or pay rental, affords a con¬ 
sideration which renders the lease enforceable by 
the lessee. 

Pierce Fordyce Ass’n., v. Woodrum, 188S.W.,245. 

W. H. Staley v. C. S. Witherspoon; notation by 
Supreme Court in refusing writ of error, see 169 S. 
W., 200. 

A lease, though without consideration of money 
paid or promise made by the lessee, is in effect a con¬ 
tinuing offer by the lessor to the lessee, and if and 

4 

when the lessee begins drilling or having failed to 
drill pays the stipulated rental to the lessor, the 
offer in the meantime not having been revoked, such 
act would constitute an acceptance of such offer and 
the lease would be thereby converted into a valid 
lease. 

This is offered as a corollary to the foregoing prop¬ 
ositions; citations in its support will be found gen¬ 
erally under the subject of contracts. 

An oil lease is held to be a conveyance of a part of 
the realty and the execution of such a lease on a 
homestead by the husband without the joinder of 
the wife is void. 

Southern Oil Co. v. Colquitt, 69 S. W., 169. 

Texas Co. v. Daugherty, 176 S. W., 717. 


[FORM No. 9] 

SINGLE ACKNOWLEDGMENT 

STATE OF.. 


County of . 

Before me,., a Notary Public in and 

for .County, Texas, on this day personally ap¬ 
peared.known to me to be the 


person....whose name.subscribed to the foregoing intru- 

ment and acknowledged to me that.he.executed the 

same for the purposes and consideration therein expressed. 

Given under my hand and seal of office this. day of • 

., 19. 

Notary Public in and for.County, Texas. 

[FORM No. 10] 

JOINT ACKNOWLEDGMENT 

STATE OF., 


County of. 

Before me,..i.a Notary Public in and 

for.County, Texas, on this day personally ap¬ 
peared., and. 


his wife, both known to me to be the persons whose names are 
subscribed to the foregoing instrument, and acknowledged to 
me that they each executed the same for the purposes and con¬ 
sideration therein expressed, and the said., wife of 

the said. having been examined by me 

privily and apart from her said husband and having the same 

fully explained to her by me she, the said., 

acknowledged such instrument to be her act and deed, and de¬ 
clared that she had willingly signed the same for the purposes 
and consideration therein expressed, and that she did not wish 
to retract it. 

Given under my hand and seal of office this.day of 

., 19. 

Notary Public in and for.County, Texas. 

Note: 

Execution of all instruments aifecting an interest 
in land, including mineral leases, assignments of 
same, sub-leases, and conveyances of mineral rights, 
and royalties, should be ackno.wledged by using the 
above forms. ' 


56 






























APPENDIX 


LAWS OF 1919 AFFECTING OIL AND GAS AND 

MINERAL RIGHTS. 

(Legislature adjourned March 19, 1919.) 

Chapter 163, page 312, amends Article 5407 of the 
Revised Civil Statutes of 1911 as follows: 

Sec. 2. Article 5407 of the Revised Civil Statutes 
of 1911 shall be so amended as to hereafter read as 
follows: 

Article 5407. The Commissioner of the General 
Land Office shall from time to time, as the public in¬ 
terest may require, classify or reclassify, value or re¬ 
value, any of the lands included in this Act, designat¬ 
ing the same as agricultural, grazing or timber, or a 
combination of said classifications, according to the 
facts in the particular case, and when entry of 
the classification and the appraisement is made on 
the records of the General Land Office, no further 
action on the part of the Commissioner, nor notice to 
the County Clerk shall be required to give effect 
thereto. No land classed as agricultural shall be 
sold for less than one dollar and fifty cents per acre 
and no land classed as grazing shall be sold for less 
than one dollar per acre. The land included in this 
Act shall be sold with the reservation of the oil, gas, 
coal and all other minerals that may be therein to the 
fund to which the land belongs and all applications 
shall so state. Timber on land shall be sold for cash 
at its fair market value. The Commissioner shall 
notify the clerk of the proper county of the sale of 
each tract, giving the name and address of the pur- 


67 



chaser together with the price of the land. When 
informed of the sale of any land the clerk shall enter 
on his books opposite the description of the land sold, 
the name of the purchaser and the date sold, and the 
notice of such sale and the books of record and entry 
shall be considered public records, and be open to 
public inspection, and it is hereby made the duty of 
the county clerk to exhibit the said records to any 
person who shall apply therefor. 


See amendment of Article 5432, page 315 of the 
Laws of 1919, providing that ‘The lands (unsurveyed 
lands) shall be sold with the minerals therein re¬ 
served to the School Fund.” This law approved 
April 3, 1919, becomes effective 90 days after ad¬ 
journment. 

The following laws were adopted by the 1919 Leg¬ 
islature and on the following subjects: 

Chapter 8, page 8, An Act “authorizing private 
corporations for the establishment and maintenance 
of drilling companies for the purpose of operating 
for oil, gas and other minerals.” 

Chapter 77, page 128, An Act “requiring quarterly 
•reports to the Comptroller by individuals, etc., pro¬ 
ducing oil and fixing one and one-half per cent tax on 
gross production.” 

Chapter 117, page 183, An Act “authorizing cities 
and towns to lease for oil or other minerals any lands 
owned by such city or town, with exceptions.” 

Chapter 119, page 185, An Act “authorizing guar¬ 
dians to make mineral leases on real estate of their 
wards, and repealing Chapter 44 of the General 
Laws of the Thirty-fourth Legislature.” 

Chapter 121, page 188, An Act “validating sales 
of school land, university, asylum and public lands 
made by authority of Acts of April 12 and 14, 1883, 


58 





wherein the State did not specifically reserve the 
minerals.” 

Chapter 137, page 251, An Act ‘^authorizing lease 
or sale of gas or other minerals by executors or ad¬ 
ministrators under order of the County Court.” 

Chapter 155, page 285, An Act for the “conserva¬ 
tion of the oil and gas resources of the State; defining 
‘waste,’ and empowering the Railroad Commission to 
make and enforce regulations with reference to 
same.” 

Chapter 162, page 311, An Act “relating to injunc¬ 
tions restraining the drilling for oil or other min¬ 
erals.” 

(AUTHORS’ NOTE.—The General Lav/s of the 
Thirty-sixth Legislature were received too late to per¬ 
mit of the incorporation of the foregoing Acts in the 
body of this book and their subjects are therefore re¬ 
ferred to in this appendix for the convenience of the 
reader). 


59 


NOTES 



NOTES 








’m 


INDEX 


Page 

Abandonment or relinquishmeint. 35 

Alternate scrip . 26 

Application for permit on surveyed lands. 30 

Application for permit on unsurveyed lands. 31 

Application filed with clerk. 35 

Application filed in land office. 35 

Application filed with county surveyor. . 35 

Areas developed independently . 36 

Article 3481 (1895). 9 

Article 3495 (1895). 10 

Article 3498a (1895) .10, 11 

Articles 5397-5400 construed. 21 

Article 5904h (1913). 16 

Article 4041 Revised Statutes 1895. 17 

Article 5904 (1914). , . 18 

Articles 4274-4276 (1895) . 21 

Articles 5396-5398 (1914) . 21 

Articles 5399-5400 (1914). 25 

Association to file statement. 35 

Burnam v. Terrell . 15 

Camp V. Smith . 15 

Compensation to surface owner. 34, 39 

Conclusions . 20 

Constitution 1866 (Art. VII, Sec. 39). 5 

Constitution 1869 (Art. X, Sec. 9). 6 

Constitution 1876 (Art. XIV, Sec. 7).6, 7 

Constitution 1876 (Art. VII, Sec. 2). 26 

Cowan V. Hardeman. 5 

Cox V. Robison.6, 8, 17 

Definition and requirements. 35 

Development work. 31 

Davis v. Wiebold. 12 

Discovery of other minerals. 40 

Eighty acres or multiples. 36 

Excess acreage in survey.21 

Filing fees . 31 

Filing statement in land office. 31 

Filing transfer in land office . 37 

Forfeiture .31, 38 

Forms— 

Prospect application on surveyed lands (Form 1). 43 

Prospect application on unsurveyed lands (Form 2).— 45 

Affidavit of applicant (Form 3). 46 

Certificate of county clerk (Form 4). 47 

Certificate of county surveyor (Form 5). 48 

Assignment of application (Form 6). 49 

Assignment of permit (Form 7). 51 

Oil and gas lease (Form 8). 52 

Acknowledgment (Forms 9 and 10). 56 

62 

















































Gracey v. Hendricks. 

Greene v. Robison. 

Issuance of permit to prospect. 

Issuance of lease. 

Land Commissioner rules and regulations 

Land open to prospect. 

Laws 1837... 

Laws 1883. 

Laws 1889 (Mineral). 

Laws of 1895 and 1907. 

Laws of 1913 and 1917. 

Laws 1919 (See Appendix) .. 

Lease, conditions. 

Legislative history. 

Mineral laws, 1917. 

Minerals discovered other than applied for 

Mortgages of permit or lease. 

Notice of forfeiture . 

Notes under forms. 

Offset wells... 

Permit, issuance.. 

Permit, term of. 

Persons entitled to prospect. 

Pollution of water. 

Preference right .... 

Proceeds, disposition of. 

River beds and channels . 

Recording transfer in clerk’s office. 

Registration of permit.. 

Relinquishment of part land applied for... 

Royalties to State.. 

Rules and regulations .. 

Sale of surface, without mineral. 

Sale of permit or lease. 

Schendell v. Rogan. 

Segregation of excess. 

Separate application for each area.. 

State v. Parker. 

Sub-lease . 

Surface, use of. 

Surface owner, compensation to. 

Surveyed land . 

Surveys containing excess acreage. 

Taxation . 

Timber, use of.. 

Transfer of permit or lease.. 

Unsurveyed areas . 

Use of surface. 

Use of timber. 

Waiver of mineral rights. 

Water, pollution of. 

Whole tracts. 

Wright V. Gale. 


... 15 

.. 8 , 17 
... 31 

... 31 

... 40 

... 29 

5 

7 

9 

.10, 11 
... 17 

... 57 

... 32 

5 

..29-41 
... 40 

... 37 

... 38 

.,43-56 
... 34 

... 31 

... 31 

... 30 

... 39 

... 40 

... 37 

... 19 

... 37 

... 37 

... 35 

... 33 

... 40 

... 39 

... 37 

11, 17 
..22-26 
... 36 

6 

... 37 

... 39 

.34, 39 
... 30 

... 21 
... 41 

... 39 


. 31 

. 39 

39 

r5,”l6, 20 

. 39 

. 36 

.22, 23 


63 


























































•M' 


^ m 











/p-" 










CLAY COOKE 
Lawyer 

207 Texas State Bank Building 

Fort Worth, Texas 

W. V/. HUBBARD 
Lawyer 
Pecos, Texas 







